{4:18 minutes to read} I’ve heard many complaints regarding divorce mediation:

• “It might be okay for simple matters but not for anything complicated.”
• “It’s too touchy-feely.”
• “You give up all of your rights when you mediate.”

These types of complaints are easily dismissed as biased and uninformed; however, there are some complaints I’ve heard which I agree should be taken seriously.

Mediator Lacking Relevant Knowledge

Mediator Lacking Mediation Skills

To Be a Qualified Divorce Mediator

An unqualified mediator is harmful not just to the clients who work with him or her but also to the profession. In addition, unqualified mediators can legitimize complaints made by some who want to minimize the practice.

Fortunately, there are more qualified than un-qualified mediators who have helped thousands of couples through this safe and less expensive means of working out the issues of their divorce.

{4:00 minutes to read} I recently heard an interview of Connie Shultz, the spouse of Sen. Sherrod Brown of Ohio. She shared that since 2007, the motto of her life has been "no whining on the yacht." It began after her husband had just been elected Senator. She was publishing her second book, and life was good.

At one point, she complained to her editor about the deletion of a litany of stories detailing the wrongs she felt occurred in the senate race. Her editor insisted the sections remain out and said “no whining on the yacht.” She reminded Connie how much in her life was going well, and that she really didn’t need to focus on every slight when she was in such a good place.

I agree wholeheartedly. People don’t necessarily want to hear your complaints, especially about minutia, when others have far less and real world concerns. “Whining on the yacht” can make a person look petty and uncaring.

I thought of this as I was watching the flooding in Texas from Hurricane Harvey and heard an interview of a woman who had been rescued as her house and neighborhood became flooded. She was holding her dog, and she had taken no other belongings or necessities.

She explained that she had been in denial, thinking it would never happen to her as she watched the television coverage and cried for all of the people who had to be evacuated.

At one point, a firefighter came to the neighborhood and said that he would be back for her, but he never came. She wasn’t angry and understood that he was helping others who needed help more than she.

When she saw the volunteer boat come, she only went when her neighbor said she needed to go, and then just took her dog. She didn’t want to be a bother to anyone and wanted to be sure they rescued others before her.

From the boat, she went onto a bus, and when she got off the bus, she realized she had nothing and no one with whom she could stay. Her family was too far away and she didn’t know what to do.

Fortunately, a total stranger came up and asked if she needed a place to stay, because he and his wife were opening their home to people who were stranded. She was shocked that someone would do that for perfect strangers. The man replied that they had been helped in the past and couldn’t imagine not helping others.

Here is a woman, amongst many, who has numerous reasons to whine, complain and lament, and yet her chief concerns were for her dog and others that she perceived to be in more dire straits than she was. It’s truly a rare and remarkable person who can be that magnanimous and uncomplaining in the face of such extreme adversity.

So let’s remember this woman, and the thousands of people who have been and will continue to be suffering the effects of Hurricane Harvey and Hurricane Irma for months and years to come. No whining on the yacht can be a motto for us all.

{3:54 minutes to read} After working with a couple who had particularly good communication skills and consequently had achieved an agreement with relative ease, I gave some thought as to how this couple was different from some of my other clients.

And then I remembered that, following the first 100 days of the new administration, my friend and fellow mediator, Ada Hasloecher, posted five lessons for parties in mediation. I decided I couldn’t do it any better myself, so with her permission, I am reprinting her post. Thank you, Ada!

What Are Five Lessons From the First 100 Days?

{4:24 minutes to read} Nesting is a shared parenting concept that allows the children to stay in the marital home while the parents go back and forth. The idea is that the children will be able to remain in one familiar place, have no concerns about where they are on what day or what they need to take with them. Typically, parents who choose this will be sharing time in the home with the children on an equal basis.

To see if this might work for you, consider the following:

Long Term or Short Term?

My experience has been working with clients who have agreed to do this on a short-term basis for the following reasons:

• Wanting to separate now, but unsure where each wants to live.
• Waiting to place the marital home on the market or waiting for a sale.
• Giving it a year for the children to adjust to not being with either parent full time.

The length of time that you will be nesting may be determined by your tolerance level for the other factors listed below that I suggest you consider. If it’s working for your family, though, you certainly may choose to continue to nest for as long as you wish.

The Cost

In order to nest, you will need to be able to afford to share the costs of the home in which the children reside and, ideally, a separate apartment for each of you. Sharing the home and only one additional apartment could be done, but you need to consider how you each feel about not having any space to call your own.

The Lack of Privacy

This is somewhat alleviated when you each have your own apartment, but you will be sharing the marital home and presumably, the same bedroom you shared when you lived together. You might feel differently about leaving personal items around for the other to see and/or use than you did when you were married.

Significant Others

The longer the nesting, the more this will be an issue. Neither of you may be ready to date initially and will probably agree not to introduce the children to anyone soon after your divorce. But as time passes, you will likely be dating. Can you bring someone to the shared home? What if you are sharing an apartment as well?

Working Together

If you were always annoyed when your spouse left clothes on the bedroom floor or dishes in the sink, keep in mind that these issues will annoy you even more when you’re no longer married. You need to consider thoroughly anything that bothers you and agree upon house rules that you both can live with and actually adhere to.

Reassessment

While I always talk to clients about building into their agreement a review, it is vitally important to have a process to discuss a change if either of you feels that nesting is not working for you or the children. If it’s not working for someone, it’s not working, and that needs to be addressed as soon as possible. You may also consider building in consultations with a child specialist so the children’s views may be heard.

All of these items are important and need to be considered before you make this choice. However, if the benefits of nesting are profound for the children, you may be willing to put up with some inconveniences, or your co-parent may be willing to make some changes, so that you can continue.

{3:54 minutes to read} I just returned from the annual gathering of the NYS Conference on Divorce Mediation. This is my 12th conference, and I was as excited to go to this one as I was to my first.

While the focus is on education with plenaries and workshops on various aspects of family law and mediation theory, there is undeniably another element that plays a very big part. Whether we do it full time or not, are experienced mediators or just starting out, we all feel that we are doing something that is fulfilling and gives us satisfaction. And we all want to share our knowledge and experiences with our colleagues and support each other in a way that I have never found in other professional organizations.

I think a large part of this has to do with the generous spirit of those who enter this profession, but some credit also has to go to the high level of satisfaction we feel from what we do. Without any empirical evidence, I’m happy to relate my personal observations.

I used to represent clients in contested family law situations, real estate and estate matters. While I enjoyed nearly all of the interactions with clients, there was much that did not lead to a sense of career fulfillment:

• There were deadlines and time constraints that invariably arose at the worst times in my personal life.
• Vacations were always stressful before leaving, stressful when checking into the office to see if there were any looming disasters, and stressful in making up for lost time when returning.
• Even a real estate transaction could become adversarial with brokers or attorneys making arbitrary demands, just because they could.
• And of course, litigation would bring out the worst in not just the client, but in me as well.

Since I have limited my practice to mediation and representing clients in mediation several years ago, I certainly wouldn’t say that all stress has disappeared or that I always feel that I am leading a charmed life with all clients being undemanding and no matters causing me anxiety. But even in challenging mediations, I am still glad to be doing what I am doing and have the benefit of support from my colleagues.

More importantly though, I am not enmeshed in a situation in which there is an adversary. Even while representing a client in a mediation, that client has chosen to work collaboratively with the other party, and that makes all the difference.

I feel fortunate to be able to do something that I enjoy and at the same time provides a service that benefits so many people. And I appreciate the opportunity to speak with and help new mediators entering the profession.

As more professionals recognize the benefits of being a mediator, I have no doubt that more and more couples will choose to meditate and experience the benefits of handling their conflict through this process.

{3:06 minutes to read} In the previous part of this series, we looked at parental considerations in relation to a child’s college education. In this final post, we will discuss the child’s role with regard to their college education and any credits against child support.

Should there be a contribution from the child?

Do you believe that the child should be responsible to pay for part of college, through loans or otherwise?

This has both philosophical (should the child contribute for her own sake) and practical (can you afford to fully fund college) considerations. I have seen contributions be applied:

• At a rate of 1/3 for each parent and the child;
• Where one parent or child takes on a larger share;
• With variations on the percentages.

The child’s contributions, unless from savings, would be from loans, so the parents should address who will co-sign if required. Also, a scholarship, which is earned through the skill of the child could be part of that child’s contribution.

What requirements are placed on the child in terms of attending college?

What if your child wants to be on “the 5-year plan” or doesn’t do well in school?

Parents often will limit their contributions to four years at an accredited college, university or other institution of higher learning. They may further stipulate that the child attends on a full-time basis and that the child maintains a passing average.

Does a parent paying child support receive a reduction for a child residing at college?

What expenses are “double paid” by someone paying child support?

Whether you just think about these terms on your own or speak to your spouse or partner before addressing them in mediation, it would be helpful to know how you feel about these issues before mediating them.

{3:18 minutes to read} In Part 1 of this series, we looked at parental considerations in relation to a child’s college education. In Part 2, we will define typical college expenses and look at limits on what a parent will contribute.

How do you define “college expenses?

Is it just tuition, room and board, or do you want to consider other typical expenses that will be due?

In addition to tuition and room and board, most parents include a provision to share:

• Required books, materials and supplies;
• Laboratory, library, student and athletic fees and equipment;
• A computer and printer;
• Off campus housing;
• University and activity fees; and
• Reasonable transportation expenses.

Will you pay any expenses related to college applications or testing?

How do you pay for SAT courses, college applications and visiting colleges?

Most parents agree to share in application and testing fees, including SAT related courses. They may also agree to share the costs for visiting colleges, but with a limit as to how many colleges will be visited.

Should there be a limitation on how much a parent would be required to pay (a SUNY cap?)

Do you think that, no matter the cost, you are willing to pay for the school that your child seeks to attend?

Whether the child attends a State University of New York University (SUNY) or a private school, parents may want to limit responsibility to the charges at a SUNY school at the time the child enters college, in addition to the other fees defined as college expenses. You should also research and specify the exact SUNY college that will be used as the measure.

How to apply money already saved?

Does only one of you get a “credit” for college money provided by that person’s parents?

In the final post of this series, we will discuss the child’s role with regard to their college education and any credits against child support.

{4:00 minutes to read} Certain children’s expenses must be paid in addition to child support, according to the child support statute: medical insurance premiums, unreimbursed medical expenses and child care expenses. These are mandatory add-ons.

Then, there are expenses that may be ordered at or in the Court’s discretion, including post-secondary educational expenses. The Court will consider the parties’ circumstances and what is in the best interest of the child at the time the child would be entering college.

Because it’s not a mandatory add-on, clients may think it’s not necessary to discuss college costs, but that could leave a very big issue undecided and subject to future dispute. So, while you are in the process of addressing a myriad of terms while mediating your divorce, it makes sense to include a discussion about college.

Below are some items you should consider before you begin to discuss this issue in mediation.

Should there be a parental contribution at all?

If at all possible, a decision on this question should not be left open-ended. Doing that can result in a possible dispute in the future, so be as detailed as you possibly can. You can:

• Provide for a monthly or yearly contribution to a 529 Plan;
• Agree to take out a loan or co-sign your child’s loan;
• Designate some of the funds to be used for college if a marital home is to be sold.

Realistically, does your financial circumstance permit you to do so, even if you agree that contribution would be a good thing?

If your situation is such that one or both of you are unable to make any commitment at this time, you can include language that provides you will address it when the child is about to enter college. But the agreement should be clear as to what you will consider in terms of financial circumstances (assets, income, expenses, debt) to decide how much each can contribute. You also want to detail a process to follow, such as mediation first and then the right to go to court if you can’t agree.

Philosophically, do you believe that you should pay for college?

Or, if you feel that you either financially or philosophically do not want to commit to paying for college, then you can provide that any payment would be voluntary, and that neither of you can compel the other to contribute to college expenses.

How do you share the parental contribution?

Should it be paid by you both equally or pro rata to income?

Typically, parents agree that the contribution will be shared pro rata to their incomes at the time that the child is entering college. Others will consider this as an expense to be shared equally, no matter their incomes. Consider, though, if a party voluntarily stops working, you might want a way to determine what income should be imputed to that party, such as an average of past income or his/her income just prior to retirement.

In Part 2 of this series, we will define typical college expenses and look at limits on what a parent will contribute.

{4:00 minutes to read} I often caution clients against including language in their agreement which is basically just an agreement to agree: anything that begins with “The parties will agree upon...” or “The parties agree to review...” But it depends on the issue and on the couple.

Sometimes it makes sense not to spend an enormous amount of time either on something that is not all that contentious or something not likely to happen. Other times, though, leaving big decisions for the future is just putting off an inevitable conflict that should be addressed now.

Here are some examples of terms that may or may not need to be spelled out completely, depending on the term and the couple.

Hours of Access and Holiday Sharing

There are couples who are capable of having a parenting plan that leaves the hours for access on a particular day or the holiday schedule as “agreed upon.” Others clearly need to have exact hours for pick-up and drop-off as well as a detailed holiday plan to avoid future conflict.

Process for the Sale of a House

When discussing terms for the sale of a jointly owned home, I’ll ask the couple if they believe that they can agree upon a broker, a listing price, reductions to the prices, an accepted offer, etc. It’s obvious that some will have no problem with “as agreed upon,” and equally obvious when the agreement needs to be detailed as to who the broker will be, how reductions will be made, and what offers must be accepted.

College

Future Income Tax Filings

If the parties expect to be married at the end of the year, we’ll discuss whether or not they will file a joint income tax return. Some couples can easily make that determination at the time of filing, but others may need to have a more detailed process for how that determination will be made.

No one can definitively predict what future circumstances will bring or what level of conflict will arise, but I do trust that the couple, especially those who choose to mediate, are capable of determining in what areas they anticipate conflict and in what areas they will be able to agree. Their agreement can then reflect that.

{3:36 minutes to read} I recently attended a panel discussion on how to determine income in a matrimonial mediation. The panel consisted of a litigator, a mediator and a financial professional. The idea was to show the different approaches each would take in cases where income was hard to determine, such as self-employed parties, cash income, other complicated financial situations, or when a party just refuses to disclose relevant information. That got me to thinking about disclosure in general and how it can evolve in mediation.

When a Financial Person is Needed

Even if someone isn’t actively trying to evade financial disclosure, there are some situations where the parties and the mediator need help in going through vast, complicated financial documents to determine a party’s actual income. In those cases, working with a financial neutral, preferably one who has been trained in mediation, is vital to help everyone understand that 50-page income tax return and complex financial statements.

Does It Matter How It’s Done?

Some Clients Need to Go to Court

Disclosure in mediation is voluntary in the sense that there are no subpoenas or court rulings. However, full disclosure is necessary in order to assure a comprehensive mediation and satisfactory outcome.